GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS CONDITIONS FOR THE SALE OF GOODS

 

These GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS (these “Terms”) govern each purchase and sale of goods (the “Goods”) between TIG Distributing d/b/a THE INTEGRATION GROUP, an Iowa corporation, whose mailing address is 1702 Rex Ryden Road, Marshalltown, IA 50158 (“Buyer”) and the party selling goods to Buyer (“Seller”) pursuant to a purchase order delivered by Buyer to Seller (each a “Purchase Order”). Seller and Buyer are each individually referred to herein as a “Party” and collectively the “Parties.”                                                                                  

1.                     APPLICABILITY. These Terms will supplement the terms of any Purchase Order. The Purchase Order, together with these Terms and additional details that are sent with the PO via EDI, Email, or facsimile, comprises the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, proposals, representations and warranties, and communications, both oral and written, pertaining to the Goods. These Terms and the Purchase Order exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller unless expressly approved by Buyer. Notwithstanding the foregoing, in the event of a conflict between these Terms and a Purchase Order approved by the Parties, the terms of such Purchase Order shall prevail and govern.

 

2.                     ACCEPTANCE. No Purchase Order is binding on Buyer until Seller accepts the Purchase Order in writing (including via fax or email). Seller’s acceptance of any Purchase Order is expressly limited to the terms and conditions contained therein, and no changes, additions, or modifications will be valid unless confirmed in writing by Buyer.

 

3.                     DELIVERY OF GOODS. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the Parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Purchase Order immediately by providing written notice to Seller, and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during normal business hours or as otherwise instructed by Buyer. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder.

 

4.                     SHIPPING TERMS. Shipping terms are as set forth in the applicable Purchase Order. All Goods shall be packaged for shipment in accordance with Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Unless otherwise specified in the Inco-term of the purchase order, delivery of all Goods shall be FOB Origin. Notwithstanding any shipping terms stated in the applicable Purchase Order, if Seller arranges freight, Seller accepts responsibility for filing all damage claims with the carrier and replacing or reimbursing Buyer for all shipment damage.

 

5.                     INSPECTION AND REJECTION OF NONCONFORMING GOODS. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the inspected Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Purchase Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the affected Purchase Order for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under these Terms, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

 

6.                     PRICES. The price of the Goods is the price stated in the Purchase Order (the “Price”) or as otherwise agreed by Buyer and Seller. If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer, which may be withheld in Buyer’s sole and absolute discretion. Buyer may require additional documentation or information prior to approval of any Price increase, and no price increase may take effect less than 60 days after Seller’s request without Buyer’s consent, which may be withheld in Buyer’s sole and absolute discretion.

 

7.                     PAYMENT TERMS. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Unless otherwise agreed by Seller in writing, Buyer shall promptly pay all properly invoiced amounts due to Seller based on the terms set forth in the applicable invoice, except for any amounts disputed by Buyer in good faith. Notwithstanding anything to the contrary contained in these Terms or in the applicable invoice, Buyer has no obligation to pay any amounts due earlier than thirty (30) days following delivery. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than five (5) days after goods are received or five (5) days prior to the date payment is due on the disputed invoice, whichever is later, listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under these Terms and each Purchase Order notwithstanding any such dispute.

 

8.                     SELLER’S OBLIGATIONS. Seller shall:

 

a.                     obtain, and for two (2) years following Buyer’s issuance of the last Purchase Order, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Goods;

b.                     comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures;

c.                     obtain Buyer’s written consent, which shall not be unreasonably withheld, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Goods to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations under these Terms, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of these Terms as if they were Seller’s own employees. Nothing contained in these Terms shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;

d.                     ensure that all of its equipment used in the provision of the Goods is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer;

e.                     give Buyer not less than sixty (60) days prior, written notice of any specification, design, part number, or other identification changes, or any major changes in process or procedure of performance of Seller’s obligations under these Terms; and

f.                     abide by the requirements of the Customer Supplier Code of Conduct available at and refrain from use of materials on the Customer Restricted Materials List.

g.                     comply in all respects, and cause its suppliers and subcontractors to comply in all respects, with quality and process requirements of the design owner of the items listed on this PO as well as those of The Integration Group. 

 

9.                     CHANGE ORDERS. Buyer may at any time, by written instructions issued to Seller (each a “Change Order”), order changes to the Goods. Seller shall within ten (10) days of receipt of a 

Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed Goods subject to the cost proposal and these Terms. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under these Terms.

 

10.                  WARRANTIES.

 

a.                     Seller warrants to Buyer that all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; (vi) comply with then-current safety standards; and (vii) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer.

 

b.                     The warranty period begins when the part is delivered to the original end-use purchaser, which may not be Buyer.  The warranty period shall last for one year or the Seller or manufacturer’s warranty period, whichever is longer. The warranty period may be extended or amended by mutual written agreement of the Parties.

 

c.                     The warranties set forth in this Section are cumulative and in addition to any other warranty included in the purchase order, or otherwise provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.

 

11.                  GENERAL INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors, or assigns and its/their respective directors, officers, shareholders and employees (collectively, the “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods purchased from Seller or Seller’s negligence, willful misconduct, or breach of these Terms or a Purchase Order. Seller shall not enter into any settlement without Buyer’s prior written consent.

 

12.                  INTELLECTUAL PROPERTY INDEMNIFICATION. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s prior written consent.

 

13.                  COMPLIANCE WITH LAWS. Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.

 

a.                     Seller shall provide all documentation, declarations or certificates required by law or regulation related to the chemical content of the Goods, including but not limited to Material Safety Data Sheets and updates;

 

b.                     Seller shall package, transport, and label the Goods and their containers in accordance with all applicable federal, state, provincial, and local packaging, shipping, and labeling laws and regulations in effect in the place to which the Goods are intended to be sold and/or used, as specified by Buyer. In the absence of laws regulating the labeling of hazardous substances, Seller shall label such substances or their containers in accordance with WARNING LABELS, MANUAL, L-1 published by the Manufacturing Chemists Association, Washington, D.C., or any ANSI or similar standard enacted subsequent to this Manual.

 

c.                     Seller shall provide and affix all appropriate contents, warnings, and other written text or symbols required by law or regulation, including but not limited to the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), on Goods packaging and/or labels for consumer and commercial use as applicable. Buyer reserves the right to approve label design and layout prior to distribution, except to the extent that Seller reasonably determines, in its sole judgment, that any requested changes will result in non-compliance with or violation of legal requirements relating to labeling. Reservation of this right in no way affects Seller’s indemnification obligations in Section 11.

 

d.                     Seller shall register all Goods with all appropriate regulatory agencies and authorities of the states, territories and local jurisdictions as necessary and timely provide appropriate regulatory authorities or Buyer, if necessary, all data required to support such Goods registrations.

 

e.                     Seller shall comply with all provisions of consumer and workplace laws and regulations in all applicable jurisdictions.

 

f.                     Seller shall abide by the requirements of the Canadian Anti-Spam Law (CASL) and the CAN-SPAM Act of 2003 and specifically agrees that it will not send Buyer or Buyer’s customers advertisements, promotions or any product-related communication without the Buyer’s express consent.

 

g.                     Seller shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

 

14.                  CONFIDENTIALITY. All non-public, confidential, or proprietary information of Buyer, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by Buyer to Seller, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential, solely for the purpose of performing under this Terms and Conditions and each Purchase Order, and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.

 

15.                  INSURANCE. From the date of Seller’s first acceptance of a Buyer Purchase Order through the period ending two (2) years after the issuance of Buyer’s last Purchase Order, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability, bodily injury, property damage, and blanket contractual liability for all written contracts, personal injury, and products-completed operations) and professional liability in a sum no less than $1,000,000 each occurrence and $2,000,000 in the aggregate with an AM best rating of A or better. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. Seller shall ensure that Buyer is listed as an additional insured on the above-described policies. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy.

 

16.                  TERMINATION. In addition to any remedies that may be provided under these Terms, Buyer may terminate each outstanding Purchase Order with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate all outstanding Purchase Orders upon written notice to Seller. If Buyer terminates the outstanding Purchase Orders for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

 

17.                  NO WAIVER. No delay or failure by Buyer to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies or be construed to be a waiver of any breach 

or acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude the further exercise thereof or the exercise of any other right or remedy.

 

18.                  LIMITATION OF LIABILITY. Buyer shall not be liable to Seller or any other person or entity for the injury or death of any person, or for any damage or loss of property, unless such injury, death, damage or loss is the direct result of willful, reckless, or intentional misconduct by Buyer or any of its employees. In no event shall the liability of Buyer exceed the amount of insurance actually paid by Buyer’s insurer in connection with such an incident. In addition, under no circumstances shall Buyer be liable for indirect, special, incidental, punitive or consequential damages arising out of, or in any way connected with these Terms. Nothing in these Terms shall exclude or limit Seller’s liability for fraud, personal injury, or death caused by its negligence or willful misconduct.

 

19.                  FORCE MAJEURE. Neither Party shall be liable to the other for any delay or failure in performing its obligations under a Purchase Order or these Terms to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that Party, without such Party’s fault or negligence, and which by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under these Terms. If a Force Majeure Event prevents Seller from carrying out its obligations under these Terms for a continuous period of more than twenty (20) business days, Buyer may terminate all outstanding Purchase Orders immediately by giving written notice to Seller.

 

20.                  ASSIGNMENT. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under any Purchase Order or these Terms without the prior written consent of Buyer.  Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under a Purchase Order or these Terms without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.

 

21.                  RELATIONSHIP OF THE PARTIES. The relationship between the Parties is that of independent contractors, and shall not be construed as any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

 

22.                  NO THIRD-PARTY BENEFICIARIES. The Purchase Orders and these Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of any Purchase Order or these Terms.

 

23.                  NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in a Purchase Order or these Terms, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Delivery of Notice or any other communication electronically, including via email or facsimile, shall be deemed delivery in writing for purposes of these Terms.

 

24.                  SEVERABILITY. If any term or provision of a Purchase Order or these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Purchase Order or these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

25.                  SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Warranties, Insurance, General and Intellectual Property Indemnification, Compliance with Laws, Survival, Limitation of Liability, Intellectual Property Rights, and Governing Law.

 

26.                  AMENDMENT AND MODIFICATION. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and that is signed by an authorized representative of each Party.

 

27.                  INTELLECTUAL PROPERTY RIGHTS. Seller shall and hereby does assign to Buyer any and all rights in any intellectual property in the Goods that is developed by or on behalf of Seller 

in performance of the corresponding Purchase Orders. 

 

28.                  GOVERNING LAW. These Terms, and the corresponding Purchase Orders, shall be governed by and construed in accordance with the internal laws of the State of Iowa, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction other than those of the State of Iowa. Each Party consents to the jurisdiction of the courts in and for the State of Iowa in connection with any dispute arising under these Terms, the Purchase Orders, or the enforcement hereof or thereof.